Introduction
This Quick-Guide covers what we mean by the "record of an exclusion", what happens to that record after the exclusion, and the options families have to challenge that record.
What are education records?
In accordance with Section 3 The Education (Pupil Information) (England) Regulations 2005, “educational record” means any record of information which:
- is processed by or on behalf of the governing body of, or a teacher at, any school;
- relates to any person who is or has been a pupil at any such school; and
- originated from or was supplied by or on behalf of any of the persons specified in paragraph (3).
A record of an exclusion will typically exist in the form of the exclusion letter being placed on the young person’s file. It may also include statements from staff and students upon which the exclusion is based. Future readers of an excluded child’s record may have no more information apart from a summary reason for the exclusion, which could be as basic as "a serious breach of the behaviour policy", and the date of the exclusion. In the event of a suspension, the reader would know the length of the exclusion. Alternatively, they could have a detailed understanding of the events that resulted in the exclusion and the weight of the evidence.
How can a challenge to a school exclusion change a young person’s record?
It is a common misconception that if the governing board reinstates a young person, their record will be amended so that it will no longer contain details of the exclusion. The reality is that, save for the very limited circumstances set out below, the record of the exclusion cannot be removed from the record. This means that, if a young person is reinstated, the record of the exclusion will remain on the pupil’s file, but, in accordance with paragraph 125 of the exclusions guidance, their file will be updated with the governing board's decision and copies of relevant papers.
The same is true of the independent review panel’s decision. If the IRP chooses to quash an exclusion, but it is subsequently upheld on reconsideration by the governing body, then under the guidance at paragraph 218, the IRP can still direct that the student record be updated with relevant information. The IRP cannot give any direction that the record of the exclusion that is already on file be removed or amended.
Are there other avenues available to correct educational records?
Civil discrimination case
If a family is successful in arguing that the exclusion was discriminatory either at the First Tier Tribunal or the County Court, then the judge may deem it appropriate to order that the record of the exclusion be expunged.
Families should be sure to raise this with the judge at the time to ensure that it is considered part of the order that the family is seeking.
The Data Protection Act 2018
The Data Protection Act concerns the proper processing of personal information held in a range of circumstances. It is unlikely that it could result in the removal of an exclusion from a school record. However, it might well be available to ensure that the record is accurate.
Individuals have a right to obtain information about themselves, as can be seen in the Quick Guide on Information Rights. If a pupil requests their information and sees that it is not accurate, they can ask the school, as data controller, to update it to ensure it is a true and accurate record. This is known as the accuracy principle, or right to rectification. It is included in Article 5 of the General Data Protection Regulation. For more information, read this guide on the right to rectification produced by the Information Commissioner’s Office.
Requesting rectification and making a complaint to the ICO if it is refused can be helpful if a family is concerned that elements of an exclusion record are inaccurate. This might be because it includes statements from staff or students that were found to be untrue during the challenge or because it does not accurately reflect mitigating circumstances that were found to exist.
What is the impact of a young person’s education record?
All maintained schools are required by the Education (Pupil Information) (England) Regulations 2005, at Regulation 9, to send something called the "common transfer file" to a new school when a child’s registration changes. You can see a full list of what is included in the common transfer file in the regulation’s Schedule 2.
The common transfer file does not require the inclusion of disciplinary records or records of any exclusion. In addition, academies and free schools do not need to use this system at all. However, it should be considered likely that schools of any type will provide a full file to new and prospective schools on request, including details of any exclusions.
This sharing between schools will, in most cases, be the extent of the impact of an exclusion record. Sharing information beyond a school’s obligation to send a file to a new school will, in most cases, be prohibited by data protection law. A young person’s school file remains their personal information, and their right to have that information guarded against unauthorised disclosure is included in the Data Protection Act 2018 and is a human right under Article 8 of the European Convention on Human Rights. This means that a school file should not follow a young person any further than their primary, secondary, and, in some instances, further education. It should not follow them into higher education or employment.
An exception would be if the sharing of information has a "legitimate law enforcement purpose". Families should therefore be aware that if the incident that led to the exclusion also led to police involvement, the information the school collects during the exclusion challenge may feasibly be shared with the police.
